HQ 0733663 - Application for further review of Protest No. 0901-800- 00829, concerning country of origin marking of airplane graphic engine monitors; marking duties 19 CFR 134.43 - United States International Trade Commision Rulings

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HQ 733663

June 3, 1991

MAR-2-05 CO:R:C:V 733663 RSD

CATEGORY: MARKING

District Director of Customs
111 West Huron Street
Buffalo, New York 14202

RE: Application for further review of Protest No. 0901-800- 00829, concerning country of origin marking of airplane graphic engine monitors; marking duties 19 CFR 134.43

Dear Sir:

This is in response to protest no. 0901-8-000829, dated November 18, 1988, and the Application for Further Review dated March 19, 1990, on behalf of Insight Instrument Corp., against your decision to assess marking duties in connection with an entry of imported graphic engine monitors for airplanes.

FACTS:

The record indicates that Insight Instruments Corporation manufactures an electronic device known as a graphic engine monitor. These devices are designed to monitor the performance of engines on various airplanes. On June 16, 1988, a shipment of graphic monitors valued at XXXXXX arrived at the Buffalo District of Customs. The shipment was subject to an intensive examination. The examination revealed that the graphic engine monitors were marked with their country of origin by use of paper stickers. Customs in Buffalo determined that the graphic engine monitors were subject to the special marking provisions of Section 134.43 of the Customs Regulations, 19 CFR 134.43. Because the monitors were not marked in accordance with 19 CFR 134.43, a marking notice was issued. Marking duties equal to 10% of the value of the merchandise were assessed against the shipment. The record also indicates that the importer was advised by Customs officials in Cleveland that country of origin marking by use of paper stickers would be acceptable.

ISSUE:

Were marking duties properly assessed on a shipment of graphic engine monitors because they were not marked to indicate their country of origin in accordance with the requirements of 19 CFR 134.43? LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.1304), provides that, unless excepted, every article of foreign origin imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. 1304 was that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will." United States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.1(b) defines country of origin as the country of manufacture, production, or growth of any article of foreign origin entering the U.S. 19 CFR 134.41(b), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. 19 CFR 134.44 indicates that any method of marking at any location insuring that country of origin will conspicuously appear on the article shall be acceptable. Such marking must be legible and sufficiently permanent so that it will remain on the article (or its container when the container and not the article is required to be marked) until it reaches the ultimate purchaser unless deliberately removed. If paper sticker or pressure sensitive labels are used, they must be affixed in a conspicuous place and so securely that unless deliberately removed they will remain on the article while it is in storage or on display and until it is delivered to the ultimate purchaser. However, 19 CFR 134.43 requires that certain specified articles such as knives, forks, steels, cleavers, clippers, shears, scissors, safety razors, blades for safety razors, surgical instruments, pliers, pincers, nippers and hinged hand tools for holding and splicing wire, vacuum containers, and parts of the above articles shall be marked legibly and conspicuously by die stamping, cast-in-the mold lettering, etching (acid or electrolytic), engraving, or by means of metal plates which bear the prescribed marking and which are securely attached to the article in a conspicuous place by welding, screws, or rivets.

Prior to 1989, 19 CFR 134.43 not only mentioned specific articles which had to be specially marked, but also included the following language "The articles such as those referred to are classifiable under the following items of the Tariff Schedules of the United States." The regulation then listed a series of tariff classification numbers. Although 19 CFR 134.43, no longer includes this provision listing tariff numbers, since the importation occurred before 1989, this earlier version of the regulation is applicable to this protest.

After classifying the merchandise and determining that it should be classified under one of the TSUSA numbers listed in 19 CFR 134.43, your office assessed marking duties because the merchandise was not marked in accordance of the requirements of 19 CFR 134.43. This determination was based on your reading of 19 CFR 134.43 in which you concluded that every article classified under one the tariff numbers listed in 19 CFR 134.43 should be marked in accordance with the special marking requirements of the regulation. In support of this conclusion, you cite HQ 709754, June 20, 1979, which held that all items classified under 712.49, TSUSA, a item number listed in 19 CFR 134.43, must be marked in accordance with the specific requirements of the regulation.

After careful consideration, we now conclude that based on language of the regulation, HQ 709754 is not correct and should not be followed. The phrase "such as those referred to are classifiable under following items of the Tariff Schedule of the United States" indicates that the intent of including the tariff numbers in the regulation was only to show where the items specifically enumerated in 19 CFR 134.43 would be classified. We do not believe that 19 CFR 134.43 required every article classified under the tariff numbers listed in the regulation should be specially marked. It is our opinion that the only articles subject to the special marking requirements were those specifically enumerated by name in 19 CFR 134.43. This interpretation is more reasonable because it would be illogical to enumerate by name only a few specific articles that were subject to the special marking requirements when it was intended for all the items classified under the TSUSA numbers cited in 19 CFR 134.43 (which would include other items not mentioned) to be specially marked. The interpretation of 19 CFR 134.43 set forth in HQ 709754, that all articles classifiable under a specified TSUSA item number are subject to the special requirements of 19 CFR 134.43, would make it unnecessary and redundant to also enumerate by name the items that had to be specially marked.

The question remains whether the graphic engine monitors are included in one of the categories of articles set forth in 19 CFR 134.43. The articles specified therein (the version in effect in 1988) includes knives, clippers, shears, safety razors, surgical instruments, scientific instruments, pliers and vacuum cleaners. Because there is no discernable reason why the listed articles should be marked in a more permanent manner than other articles, we are of the opinion that this provision should be narrowly construed. Graphic engine monitors are not one of the items specifically listed in 19 CFR 134.43; nor do we consider them scientific or laboratory instruments. We note that they are used to monitor the performance of airplanes and not to do scientific or laboratory analysis. Therefore, we find that the merchandise was not subject to the special marking requirements of 19 CFR 134.43. The use of paper stickers would be sufficient to meet the general permanency requirements of 19 U.S.C. 1304 and 19 CFR 134.44 provided they are securely affixed. We note that the importer was advised in this matter by an import specialist in the Cleveland district that the marking of the graphic engine monitors by paper stickers was acceptable and satisfied the general permanency requirements.

HOLDING:

The graphic engine monitors are not subject to the special marking requirements of 19 CFR 134.43. Country of origin marking the graphic engine monitors by use of paper stickers securely affixed was acceptable. The protest should be granted and the assessment of marking duties should be cancelled. A copy of this decision should be attached to the Customs Form 19, to be sent to the Protestant.

Sincerely,

John Durant, Director

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